Defendant-Appellee Michelin North America ("Michelin") terminated
Plaintiff-Appellant Tony Bartee from his job as a foreman at its Ardmore,
Oklahoma factory. After his termination, Mr. Bartee brought suit pursuant to the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging
that Michelin failed to reasonably accommodate his disability and that it
wrongfully terminated his employment. On appeal, Mr. Bartee challenges the
District Court's back-pay award and its order barring a punitive-damages
instruction. On cross-appeal, Michelin contests the District Court's failure to
grant it judgment as a matter of law. We exercise jurisdiction pursuant to 28
U.S.C. § 1291, AFFIRM in part, REVERSE in part, and REMAND for a new
determination of damages.

I. BACKGROUND

Mr. Bartee worked as a foreman at the Michelin factory in Ardmore. This
position required Mr. Bartee to move about the sizeable plant to oversee his
employees. In 1995, Mr. Bartee was diagnosed with avascular necrosis in both of
his hips, which required two surgeries. Post-traumatic arthritis in his right ankle,
which resulted from a previous car accident, also made walking and prolonged
sitting increasingly painful.

Mr. Bartee asked Michelin to provide him a four-wheeled golf cart to
lessen the strain of his daily movement in the plant. Michelin denied this
request, instead providing him with a smaller three-wheeled cart. The size of this
cart caused Mr. Bartee, a 6'4" man, significant discomfort and aggravated his hip
condition. Faced with increasing pain, Mr. Bartee took short-term disability
leave on June 4, 1998, which became long-term disability leave on December 3,
1998.

Michelin's employment policy requires it to terminate all employees who
fail to return to work within twelve months of taking disability leave. Mr. Bartee
contacted Michelin on May 3, 1999, after almost eleven months on leave,
requesting that Michelin accommodate his condition or reassign him to a job that
he could physically perform. In response, Michelin offered Mr. Bartee a job in
the planning division. This job required the employee to work occasional twelve-hour shifts with
substantial walking and standing and paid $20,000 less than the
foreman position. Michelin also denied Mr. Bartee's request for use of a four-wheeled golf cart
in this position, stating only that the three-wheeled cart should
still be available. Given the physical requirements of the planning position and
the lack of a suitable cart, Mr. Bartee's doctor advised him against taking the job.
Mr. Bartee followed this advice and refused the position. Michelin offered him
no other jobs and terminated him after his twelve months of disability leave
expired.

Mr. Bartee's suit presented two theories of recovery pursuant to the ADA:
(1) failure to provide a reasonable accommodation, and (2) wrongful termination.
The jury returned a verdict in favor of Mr. Bartee on the reasonable-accommodation theory but
against him on the wrongful-termination one. Neither
party filed a timely motion for inconsistent verdicts. In its opposition to Mr.
Bartee's request for front and back pay, however, Michelin contested the
consistency of the verdicts. The District Court, employing plain error review,
denied Michelin's request.

Although the District Court found the verdicts consistent, it refused to
award Mr. Bartee back pay to the date of judgment in light of the jury's rejection
of his wrongful termination claim. Instead, the District Court limited damages to
the time between Mr. Bartee's letter requesting reasonable accommodation and
the lawful discharge, ultimately awarding him $3,241.50. Mr. Bartee filed a
timely notice of appeal, and Michelin cross-appealed.

Mr. Bartee raises three points for review. First, he argues that the District
Court erred in awarding him only one month's back pay. Second, he asserts that
the District Court should have instructed the jury on punitive damages. Third, if
we do not reverse the District Court's back-pay ruling, he requests a new trial.

Michelin also brings three arguments on cross-appeal. First, Michelin
urges that Mr. Bartee presented insufficient evidence that he is a "qualified
individual with a disability" under the ADA. Second, Michelin contends that Mr.
Bartee offered insufficient evidence of its failure to engage in a good-faith
attempt to accommodate him. Third, in the alternative, Michelin challenges the
District Court's exclusion of evidence of Mr. Bartee's post-June 1999 medical
condition. We examine these issues in turn.

II. BACK PAY& FRONT
PAY

A. Standard of Review

A district court's decision to award back or front pay under the ADA is an
equitable one. See 42 U.S.C. § 2000e-5(g)(1)(Relief"may include . . . back pay
. . . or any other equitable relief as the court deems appropriate[.]"); McCue v.
Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999) (interpreting back and front pay
to be equitable remedies under § 2000e-5(g)(1) in a Title VII case). As an
equitable consideration, "a district court has broad discretion in fashioning relief
to achieve the broad purpose of eliminating the effects of discriminatory practices
and restoring the plaintiff to the position that she would have likely enjoyed had
it not been for the discrimination." Dilley v. SuperValu, Inc., 296 F.3d 958, 967
(10th Cir. 2002) (quotations and alterations omitted).

We review a district court's determination of front and back pay for abuse
of discretion. Davoll v. Webb, 194 F.3d 1116, 1143 (10th Cir. 1999). "Under
the law of this circuit, judicial action which is arbitrary, capricious, or whimsical
. . . . [or a] ruling based on an erroneous view of the law or on a clearly
erroneous assessment of the evidence . . . constitute[s] an abuse of discretion."
Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir. 2000) (citations and
quotations omitted). "That the court's discretion is equitable in nature, hardly
means that it is unfettered by meaningful standards or shielded from thorough
appellate review." Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975)
(citations omitted). Indeed, when affording remedies under the ADA, "[a] court
must exercise this [equitable] power in light of the large objectives of the Act."
Id.

B. Merits

Mr. Bartee argues that the District Court erred by limiting the damages for
his reasonable-accommodation claim to his lost pay, minus his disability
insurance payments, from the time that Michelin failed to accommodate him on
May 3, 1999, to his termination on June 3, 1999. Finding that the District Court
failed to establish a sufficient factual basis for its equitable award, we reverse
and remand for a calculation of back- and front-pay damages consistent with this
opinion.

1. Consistency of the Verdicts

First, like the District Court, we must interpret whether the verdicts are
consistent. Here, neither party timely asserted inconsistent verdicts. "A failure
to object to general jury verdicts on the ground of inconsistency before the jury is
discharged constitutes waiver, unless the verdict is inconsistent on its face such
that the entry of judgment upon the verdict is plain error."(*)Resolution Trust
Corp. v. Stone, 998 F.2d 1534, 1545 (10th Cir. 1993). Plain error exists only
when verdicts are inconsistent on their face.(2)Diamond Shamrock Corp. v. Zinke
& Trumbo, Ltd., 791 F.2d 1416, 1424 (10th Cir. 1986).

In Diamond Shamrock, we formulated the plain-error inconsistency test as
follows:

A verdict that resolves separate and distinct causes of action in favor
of both parties is not inconsistent on its face. . . . In contrast, when
several causes of action are identical and defended on the same
ground, a verdict for the plaintiff on one cause of action and for the
defendant on another is inconsistent. Id. at 1424-25.

In Oja v. Howmedica, Inc., 111 F.3d 782 (10th Cir. 1997), however, we
interpreted this standard to find a verdict for plaintiff in negligence and for
defendant in strict liability inconsistent on its face. We found this inconsistency,
despite the facial differences between these causes of action, because the only
two elements contested at trial, product defectiveness and injury causation, "were
common to all of Oja's claims." Id. at 791.

We note that some tension may exist between these two formulations;
however, we need not resolve any possible tension today because the verdicts
here are facially consistent under either standard.(3) First, noting that the third
elements differ for the claims of wrongful termination and failure to
accommodate under the ADA,(4) they appear
to present separate and distinct causes
of action. SeeDiamond Shamrock, 791 F.2d at 1424.(5) Second, both parties
vigorously contested the third elements of the reasonable accommodation and the
wrongful termination claims.(6) Hence, the
verdicts are consistent under plain
error review because the disputed elements were not common to both causes of
action and the jury could have logically reached opposite conclusions on those
elements. See Oja, 111 F.3d at 790-91.

2. Factual Findings of the District Court

Having found the verdicts consistent, we next evaluate the District Court's
factual basis for limiting Mr. Bartee's back-pay award. Pursuant to the Seventh
Amendment to the Federal Constitution, in fashioning equitable relief, a district
court is bound both by a jury's explicit findings of fact and those findings that
are necessarily implicit in the jury's verdict.(7)Smith v. Diffee Ford-Lincoln-Mercury, Inc. 298 F.3d 955, 965-66 (10th Cir. 2002)
(holding that the district
court abused its discretion in refusing front pay under an ADA and FMLA claim
because it "disregarded the jury's implicit finding that [the plaintiff] would have
been employed at least until the date of trial"). In other words, "the subsequent
findings by the trial judge in deciding the equitable claims [cannot] conflict with
the jury's [explicit and implicit] determinations." AG Services of America, Inc. v.
Nielsen, 231 F.3d 726, 731 (10th Cir. 2000). Moreover, a district court must
construe the implied factual findings from both jury verdicts in harmony before
using them as the basis for its equitable relief. Diamond Shamrock, 791 F.2d at
1431 (McKay, J., concurring in part, dissenting in part). Finally, to facilitate
appellate review, a district court must make clear on the record the findings of
fact on which it relies. Cf.United States v. Pelliere, 57 F.3d 936, 940
(10th Cir.
1995) (noting that an appellate court cannot review findings of fact under
U.S.S.G. § 3B1.1(b) unless the district court makes those findings on the record);
Heinold Hog Mkt., Inc. v. Superior Feeders, Inc., 623 F.2d 636, 637 (10th Cir.
1979) ("[T]he function of appellate review is to decide whether the correct rule
of law was applied to the facts found[.]").

Here, although the District Court briefly addressed the matter,(8) the findings
are insufficient to enable us to evaluate whether the District Court abused its
discretion by basing its equitable remedy on findings of fact that conflict with
those implied by both jury verdicts.(9)See AG Servs., 231 F.3d at 731;
Smith, 298
F.3d at 965-66. Thus, we reverse and remand the award of equitable relief for
specific findings of fact by the District Court and, if necessary, recalculation of
equitable damages. These findings of fact should include implied findings of
fact from both jury verdicts--read in harmony--as well as any independent
findings of fact necessary for determination of the proper equitable relief.

An ADA plaintiff may seek punitive damages if his employer acted with
"malice or with reckless indifference to the plaintiff's federally protected rights."
Kolstad v. American Dental Assoc., 527 U.S. 526, 535 (1999) (applying §
1981(a) in a Title VII case) (emphasis and alterations omitted); see also Wal-Mart Stores,
Inc., 187 F.3d at 1244 (applying Kolstad standard to an ADA case).
To satisfy this standard, the employer must engage in the prohibited conduct with
the "knowledge that it may be acting in violation of federal law, not [mere]
awareness that it is engaging in discrimination." Kolstad, 527 U.S. at 535.
Having extensively reviewed the record before us, we find no evidence that
Michelin either (1) acted with malice or reckless indifference with respect to Mr.
Bartee's federally protected rights, or (2) knew that it acted in violation of the
ADA. Therefore, we affirm the decision of the District Court to prevent the jury
from considering punitive damages against Michelin.(10)

IV. SUFFICIENT EVIDENCE OF STATUS AS A
QUALIFIED
INDIVIDUAL

A. Standard of Review

In its cross-appeal, Michelin objects to the District Court's denial of its
motions for judgment as a matter of law. We review this issue de novo, applying
the same standard as the District Court. Roberts v. Progressive Independence,
Inc., 183 F.3d 1215, 1219 (10th Cir. 1999). Under this standard,

[w]e must affirm if, viewing the record in the light most favorable to
the non-movant, there is evidence upon which the jury could
properly return a verdict for the non-movant. In conducting our
review, we do not weigh the evidence, pass on the credibility of
witnesses, or substitute our own conclusions for that of the jury.
However, we must enter judgment as a matter of law in favor of the
moving party if there is no legally sufficient evidentiary basis with
respect to a claim or defense under the controlling law. Id. at 1219-20 (quotations,
citations, and alterations omitted).

B. Merits

First, Michelin challenges the jury's determination that Mr. Bartee is a
qualified individual with a disability under the ADA. "The term 'qualified
individual with a disability' means an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 42 U.S.C. §
12111(8).

Michelin admits that Mr. Bartee is an individual with a disability. Mr.
Bartee concedes that the planning position ­ the only job offered to him by
Michelin ­ exceeded his physical capabilities by requiring extensive standing and
walking with occasional twelve-hour shifts. Thus, the relevant issues for our
analysis are: (1) whether the jury could have found, based on the evidence
presented at trial, that extensive standing and walking with occasional twelve-hour shifts are not
essential functions of the planning position and (2) whether
Mr. Bartee could have performed all essential functions of the job with
reasonable accommodation. Davidson v. America Online, Inc., 337 F.3d 1179,
1190 (10th Cir. 2003) (citations omitted).

The term "essential function" is defined as "the fundamental job duties of
the employment position the individual with a disability holds or desires." 29
C.F.R. § 1630.2(n)(1). "Determining whether a particular function is essential is
a factual inquiry." Davidson, 337 F.3d at 1191. In conducting this inquiry, the
finder of fact must give consideration to the employer's judgment regarding the
functions of a job that are essential, including those functions contained in a
written job description. See id.; see also 42 U.S.C. § 12111(8).
However, "an
employer may not turn every condition of employment which it elects to adopt
into a job function, let alone an essential job function, merely by including it in a
job description." Davidson, 337 F.3d at 1191 (quotation omitted).

Mr. Bartee produced sufficient evidence at trial for the jury to conclude
that neither of these conditions are "essential functions or prerequisites" of the
planning position. Plaintiff's Exhibit 36 includes Michelin's position description
for the planning job. It lists the eight "major responsibilities of the [planning]
position." Neither extensive walking nor twelve-hour shifts appear in these
primary requirements. In fact, Dr. Troop, Mr. Bartee's treating physician, having
already stated that Mr. Bartee could not fulfill a position requiring twelve-hour
days and extensive walking, testified that he considers Mr. Bartee qualified to
perform all of the tasks required for the planning position. Thus, sufficient
evidence existed for the jury to find that the duration of planning shifts and the
amount of walking required are not "essential functions or prerequisites" of the
planning position.

As non-essential functions, the ADA required Michelin to reasonably
accommodate Mr. Bartee regarding the use of a cart and the length of the
workday. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13 (8th Cir.
1995) (citing 42 U.S.C. § 12111(9)(B)). Mr. Bartee presented evidence showing
that he could have performed the movements required for the planning job if
equipped with an average sized golf cart. Mr. Hill, the area personnel manager,
testified that an employee could get almost anywhere in the Michelin plant by
cart, although leaving the cart for short walks would be necessary to inspect
equipment and interact with certain employees. Other Michelin employees
testified that average-sized golf carts maneuvered and otherwise operated
effectively throughout the plant. Dr. Troop stated that Mr. Bartee was physically
capable of performing labor that consisted of sitting in a properly-sized cart with
intermittent standing and walking. In addition, Mr. Bartee testified that he could
work effectively with a cart so long as it contained sufficient leg room to relieve
the pressure on his hips and allow him to operate the foot controls.

The evidence also shows that Mr. Bartee could have worked an eight-hour
day. According to Mr. Bartee and Dr. Troop's testimony, Mr. Bartee could work
for at least eight hours per day if the job consisted primarily of sitting with
occasional movement. Michelin further supported this conclusion by finding him
sufficiently qualified to offer him the planning position after reading his May
1999 letter and medical report. Interpreting this evidence in the light most
favorable to Mr. Bartee, we find that sufficient evidence existed for the jury to
reasonably determine that Mr. Bartee was a qualified individual with a disability
with respect to the planning position.

V. SUFFICIENT EVIDENCE OF FAILURE TO
ACCOMMODATE

A. Standard of Review

Michelin also challenges the jury's finding that it failed to reasonably
accommodate Mr. Bartee. Michelin raised this issue in its motion for judgment
as a matter of law. Thus, we review the District Court's order de novo, applying
the same standard as the court below. Roberts, 183 F.3d at 1219.

B. Merits

Michelin had a duty under the ADA to allow Mr. Bartee to work in the
planning department if, through reasonable accommodations, he could fulfill the
essential functions of the position. 42 U.S.C. § 12112(b)(5). To facilitate the
reasonable accommodation, "[t]he federal regulations implementing the ADA
envision an interactive process that requires participation by both parties."
Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998) (quotation
omitted); see also 29 C.F.R. § 1630.2(o)(3).

"[T]he interactive process must ordinarily begin with the employee
providing notice to the employer of the employee's disability and any resulting
limitations, and expressing a desire for reassignment if no reasonable
accommodation is possible in the employee's existing job." Midland Brake, 180
F.3d at 1171-72 (footnote omitted). After such notice--which the record
illustrates occurred here through Mr. Bartee's May 3, 1999, letter--"both parties
have an obligation to proceed in a reasonably interactive manner to determine
whether the employee would be qualified, with or without reasonable
accommodations, for another job within the company . . . ." Id. at 1172.

While "[t]he exact shape of this interactive dialogue will necessarily vary
from situation to situation and no rules of universal application can be
articulated[,]" id. at 1173, "[t]he interactive process [necessarily] includes
good-faith communications between the employer and employee[,]" id. at 1172.
As such, after receiving notice from Mr. Bartee, Michelin had a duty to engage
with him in a good faith effort to "identify the precise limitations resulting from
the disability and potential reasonable accommodations that could overcome
those limitations." Id. at 1171.

Mr. Bartee produced evidence at trial showing that Michelin failed to
participate in such an interactive process. Reading the evidence in the light most
favorable to Mr. Bartee, Michelin did not inquire about his restrictions or about
the accommodations that he needed to perform the planning position.(11) Instead,
Mr. Warner, Mr. Bartee's former area personnel manager, offered the planning
job to Mr. Bartee without assessing any of its requirements. Michelin did not
offer any position modifications to Mr. Bartee nor did it provide any evidence
showing that shortening this position's work day to eight hours or acquiring a
larger cart would disrupt essential functions of the job. In fact, the record does
not indicate any accommodations offered to Mr. Bartee by Michelin other than
the three-wheeled cart, which Mr. Bartee had already stated was too small for his
use. The record, then, provides sufficient grounds for the jury to conclude that
Michelin failed to reasonably accommodate Mr. Bartee. Thus, we affirm the
District Court's denial of Michelin's motions for judgement as a matter of law.(12)

VI. CONCLUSION

For the reasons provided above, we AFFIRM the District Court's refusal to
submit punitive damages to the jury, AFFIRM the District Court's denial of
Michelin's motion for judgement as a matter of law, REVERSE the calculation of
damages, and REMAND for further findings of fact and a determination of
equitable relief consistent with this opinion.

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. The jury received one verdict form,
identifying failure to reasonably
accommodate and wrongful discharge as separate claims and instructing the jury
to proceed directly to damages if it found for Mr. Bartee on either claim. Such
verdict forms are best construed as general verdicts. See Resolution Trust, 998
F.2d at 1545-47.

3. Although we do not decide today, we note
that the following unitary
standard seems to reconcile and capture the essence of both formulations:
verdicts are only inconsistent on their face where the jury ruled for different
parties on two or more claims and the sole elements disputed at trial were
common to all causes of action.

4. To present a claim of wrongful termination,
Mr. Bartee must show: (1) he
is disabled within the meaning of the ADA; (2) he can perform, either with or
without reasonable accommodation, the essential functions of the desired job;
and (3) "that [Michelin] terminated him because of his disability." White v. York
Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995). To present a prima facie failure
to accommodate claim, the first two elements remain the same, while the third is
met by showing that "an employer [did not] take reasonable steps to reassign a
qualified individual to a vacant position or a position the employer reasonably
anticipates will become vacant in the fairly immediate future." Albert v. Smith's
Food & Drug Centers, Inc., 356 F.3d 1242, 1252 (10th Cir. 2004).

5. We assume, without definitively deciding,
that wrongful termination and
failure to reasonably accommodate claims under the ADA are separate causes of
action. The District Court and the parties proceeded as if they were, and neither
party objected to that assumption on appeal. Furthermore, at least one court of
appeal appears to treat them as distinct causes of action. See Burch v. Coca-Cola
Co., 119 F.3d 305, 314 (5th Cir. 1997). On the other hand, both theories of
recovery arise from the same statutory provision. See, e.g., Siemon v. AT&T
Corp., 117 F.3d 1173, 1175 (10th Cir. 1997) (citing 42 U.S.C. § 12112(a) as
basis for failure to accommodate claim);Taylor v. Pepsi Cola Co., 196
F.3d
1106, 1107-09 (10th Cir. 1999) (citing 42 U.S.C. § 12112(a) as basis for
wrongful termination claim). Such cases could lend support to the view that they
provide merely alternative methods of proving one statutory cause of action.

6. For the former, the relevant issue was
whether Michelin took reasonable
steps to reassign Mr. Bartee to a vacant position. For the wrongful termination
claim, the pertinent question was whether Michelin terminated Mr. Bartee
because of his disability.

7. Unless otherwise indicated in this opinion,
the term "findings of fact"
refers both to findings implied by the district court from the jury verdicts and to
the court's original findings.

Had Plaintiff elected to proceed solely on the failure to
accommodate claim, Plaintiff would have been in a position to argue
he would have been employed by Defendant until his retirement at
age 65. However, Plaintiff elected to submit a claim for wrongful
termination to the jury. The jury, having heard all the evidence
presented by both parties, determined that plaintiff's termination on
June 3, 1999, was not discriminatory.

9. To the extent that the District Court made
written findings of fact, the
Court appeared to focus exclusively on the jury's wrongful termination verdict
and ignored the reasonable accommodation verdict. Thus, even if we found this
sparse factual analysis sufficient, its failure to interpret the implied factual
findings from both jury verdicts in harmony would require us to reverse and
remand for additional factual findings and, if necessary, the recalculation of the
equitable relief. AG Servs., 231 F.3d at 731; Diamond Shamrock, 791
F.2d at
1431 (McKay, J., concurring in part and dissenting in part).

10.Because we remand on the equitable
damages issue, we need not address
Mr. Bartee's request for a new trial as an alternative remedy.

11.At trial, Mr. Warner stated that he asked
Mr. Bartee about his restrictions,
although Mr. Bartee claimed otherwise. Mr. Warner did admit, however, that he
made no inquiry into reasonable accommodations that Michelin could make for
Mr. Bartee.

12. Michelin also claims in its cross-appeal
that the District Court erred in
excluding from trial Mr. Bartee's medical records and other information
regarding his health after June 3, 1999. Michelin asks us to reverse this ruling
only "if this Court affirms the district court's denial of Michelin's motions for
judgment as a matter of law, and if this Court grants Bartee a new trial . . . ."
Because we do not grant Mr. Bartee's motion for a new trial, we need not address
this issue.